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Table of Contents: I. Introduction. – II. The Foglia saga: towards jurisdictional control. – II.1. Foglia I and the facts leading to Foglia II. – II.2. Foglia II: main features and reception in the literature. – III. Paths not taken: reflecting on the dossier and its value. – III.1. A (lack of) genuine dispute? – III.2. France as the legal entrepreneur in Foglia II? – IV. Conclusions.
Abstract: The Foglia saga remains key to understanding the relationship between the Court of Justice of the European Union (CJEU) and domestic courts in art. 267 TFEU proceedings. By discussing the dossier de procédure of case 244/80 (Foglia v Novello II ECLI:EU:C:1981:302), this Article adds to the existing debates on the case. In doing so, it gives insights into the legal arguments of the different actors as found in the dossier, as well as into the way in which these were handled by the Court. Whereas their overall legal stance on the issue was clear from the outset, the most remarkable findings concern the arguments that were left unsaid in the final version of the judgment. These illustrate that, contrary to what the judgment seems to suggest, the case was as much about demonstrating the existence of a genuine dispute between the two parties in this specific case, as it was about the Court’s appraisal powers. The material found is also in line with existing academic commentary which pointed to the influence of France in the judgment. Though these findings are not conclusive and do not purport to reveal the motives behind this enigmatic ruling, they nonetheless give fresh insight into this extensively discussed issue.
Keywords: Foglia II – dossier de procédure – art. 267 TFEU – preliminary rulings – genuine disputes – jurisdictional control.
European Papers, Vol. 6, 2021, No 2, pp. 903-912
ISSN 2499-8249 - doi: 10.15166/2499-8249/503
* PhD in European Law, European University Institute, firstname.lastname@example.org.